MURPHY, C.J., delivered the opinion of the Court.
On January 7, 1953, John T. Hill was found guilty of murder in the first degree by a jury in the Circuit Court for Harford
The present post conviction proceeding was commenced by a petition filed on September 21, 1964 and raised for the first time since the trial the question of the voluntariness of a statement made by Hill and received in evidence at his trial. An evidentiary hearing was held on May 26, 1965, at which time Judge John Grason Turnbull denied all of Hill's contentions except that concerning the voluntariness of his statement. On December 21, 1966, Judge Turnbull gave an oral opinion in which he held that Hill's statement was involuntary. In an order dated January 9, 1967, the judgment of conviction was stricken, and Judge Turnbull directed that a new trial be held within ninety days. The State filed its application for leave to appeal from that order on February 8, 1967, asserting therein that the evidence adduced at the post conviction hearing was insufficient to justify the court's finding that Hill's statement was involuntary.
Due to the failing sight of the court reporter, only a portion of the trial transcript is available, and the facts must be ascertained from Hill's written statement that was introduced into evidence at his trial, the transcript of the post conviction hearing and the available portion of the trial transcript, which includes the testimony of an FBI agent who was present at Hill's arrest and who later interrogated Hill at FBI headquarters. We glean from these that on March 19, 1950, Hill, in the company of Harry "Raspus" Watkins, William Jerry Watkins, Thomas Mathews Watkins, Arnold Sylvester Smith, and Monroe
Hill fled from the State after the crime was committed, eventually going to Detroit where he found a job and rented a room in a rooming house. Shortly after 5:00 a.m. on August 16, 1952, agents of the FBI entered Hill's room where he was sleeping and arrested him. While a federal fugitive warrant was outstanding for Hill's arrest, it was not in the possession of the arresting agents at the time of the arrest.
Hill testified at the post conviction hearing that eight FBI agents broke into his room unannounced while he was sleeping, shone lights in his eyes, took him downstairs, stood him up against the house without any clothes on, thereafter dressed him, and took him to FBI headquarters in downtown Detroit where they interrogated him. He testified that all the agents had guns, "machine guns, shot guns, or something," and that they told him when they entered his room that "Maryland only wants your head." He further testified that at the time of his arrest, he was not informed of his right to remain silent or that anything he said could be used against him; that at no time prior to his interrogation was he informed of his right to counsel; that at the interrogation, the agents again told him that "Maryland wanted his head"; that they told him that "the State had nothing against me"; that they nevertheless wanted him to sign a "petition," telling him that if he didn't sign it "he wasn't coming back to Maryland"; that the agents had guns on him
The testimony at Hill's trial of Agent Palmer M. Wee, one of the arresting FBI agents, was received in evidence at Hill's second post conviction trial. Wee's testimony was substantially as follows: that at 5:30 a.m. on August 16, 1952, eight agents of the FBI came to Hill's rooming house; that they were all armed with revolvers and one agent had a machine gun, and another a sawed off shot gun; that two agents armed only with revolvers entered Hill's room while he was sleeping, grabbed his arms, and stood him up; that they identified themselves as FBI agents, announced that he was under arrest, handcuffed him, and advised him that he was not required to make any statement and that any statement he did make "could, and would, be used against him in a court of law." Wee's further testimony was that a total of five agents entered Hill's room while the arrest was in progress; that after the arrest Hill was taken to FBI headquarters in Detroit, a distance of some five or six miles from the scene of the arrest; that on the way Hill made a verbal statement;
During the progress of the post conviction hearing, Judge Turnbull several times indicated belief that the confession was involuntary, stating at one point in the proceedings:
The hearing judge further stated that "it would have been a different proposition if this statement would have been taken after he got out on bail, had an opportunity to consult an attorney;" but that "under the circumstances of this particular arrest, I think the arrest itself was such as to make the statement an involuntary one. * * *." Judge Turnbull stated during the hearing that he believed the testimony of Wee that Hill was advised of his rights, including his right to have a lawyer. At the conclusion of the case, the court delivered its oral opinion, in which it held:
In concluding that Hill's statement was involuntary, Judge Turnbull, in effect, disagreed with the explicit finding of voluntariness made by the trial judge at Hill's original trial. Hill did not testify as to the voluntariness of his statement at the trial, the only testimony on that question being provided by the State through Agent Wee, the substance of which was as above indicated. Wee was cross-examined by Hill's trial counsel, particularly with respect to the manner of effectuating the arrest, and he argued at that time "that the circumstances surrounding the obtaining of this statement were such as to indicate that it was not free and voluntary." The trial judge disagreed and the statement was received in evidence and read to the jury.
It appears clear that Judge Turnbull's belief that the circumstances of the arrest were "shocking" compelled him to conclude, as a matter of law, that Hill's confession was involuntary as having been coerced by fear stemming from the conditions under which the arrest was made. With that presumptive determination, we cannot agree. We do not believe that the conditions under which Hill was arrested were so inherently compulsive or coercive that his written confession, given at FBI headquarters several hours after his arrest, was necessarily irreconcilable with the possession of mental freedom and a free will.
Hill did not testify that he confessed because of fear engendered in him by the arrest, but rather because, at FBI headquarters, the agents had guns on him, he was scared and thought they were going to kill him; and, for that reason, he signed the "petition" which he later ascertained to be a confession. Certainly, this testimony of Hill, if believed, would establish that his confession was not free and voluntary, but Judge Turnbull made no finding of fact regarding the truth of this testimony, nor of that of Agent Wee which, if believed, strongly indicated that Hill's confession was a voluntary one, and not the product of a will overborne. As there is very little factual dispute concerning the circumstances under which Hill was arrested, and since we hold that such circumstances, of themselves, do not constitute a sufficient predicate upon which to base a determination that Hill's confession was not freely and voluntarily given, we deem it necessary to remand the case for the purpose of having Judge Turnbull make specific findings (a) as to what part, if any, of Hill's version of the events transpiring at FBI headquarters, by reason of which Hill alleged that he was compelled to sign the "petition," is believed, and (b) as to what part, if any, of Agent Wee's testimonial version of such events transpiring at FBI headquarters is believed. When such findings have been made, we shall then be in a position to assess whether the evidence adduced at the post conviction hearing was sufficient to justify the lower court's finding that Hill's statement was involuntary.
On remand, Judge Turnbull may additionally wish to give further consideration to the question of whether Hill, by failing to raise the question of the voluntariness of his confession either on direct appeal, in his first post conviction proceeding, or in his state habeas corpus proceeding, waived that contention under the then applicable provisions of Section 645H of Article 27 of the Maryland Code (1957 Edition) and Maryland Rule
Application for leave to appeal granted: case remanded for further proceedings in accordance with this opinion.